By Sanjay Raman Sinha
The documentary on Prime Minister Narendra Modi has raised a furore and subsequently been banned by the government. The documentary, titled India: The Modi Question, has been described by the BBC in its website as “a look at the tensions between Indian PM Narendra Modi and India’s Muslim minority, investigating claims about his role in the 2002 riots that left over a thousand dead.” Modi was the chief minister of Gujarat when the riots broke, leaving over 1,000 dead. The government has argued that internal security and public order will be disturbed by the documentary.
The government used emergency powers in the Information Technology (IT) Act to block links on YouTube and Twitter. Public screening of the documentary has also been stopped. According to the IT Act, a content can be removed if it affects the “unity, integrity, defence, security or sovereignty of India”. Days after the first episode was telecast, the government said that the film was a “propaganda exercise” and reflected a “colonial mindset”. Subsequently, the documentary was banned.
Justice Bhanwar Singh, former judge of the Allahabad High Court, while speaking to India Legal said: “We must see the intention behind the ban imposed by the government. The first question arises that these things are 20 years old. Why it is raked up today? As everyone knows, there are elections in 2024. This proves that the intention behind it is not good. Why didn’t this documentary come before? Is there any intention to target Modi? So, from that point, I can say that the intention behind it is not good and that is why the government has imposed the ban. The ban has been imposed with respect to Article 19(2) which imposes conditions to safeguard national security and sovereignty of the country.”
The international media was overtly critical of the actions of the Modi government. The New York Times, The Washington Post, Time and The Guardian strongly expressed their views against the ban and questioned the government’s commitment to freedom of expression. The New York Times wrote: “The government has not stopped at criticizing the documentary. It has also taken steps to make it difficult to view inside India, the latest intervention in the free flow of information by state machinery that carefully tends to the image of India’s most powerful leader in generations.”
As the ban got slapped, protests spread all over the country. Student groups organized film shows in campuses. Jawaharlal Nehru University, Jamia Millia Islamia bristled with defiant activity and sloganeering. The police cracked down heavily on students and stopped the show. Questions naturally got raised over the curb on freedom of speech and expression.
PK Malhotra, former law secretary, said: “Under Article 19 of the Constitution, all citizens have the right to freedom of speech and expression. Only citizens of India have basic rights as enshrined in the Constitution; these rights are not available to the people who are not citizens of India. The government also put reasonable restrictions. But, the grounds on which these restrictions are applicable are prescribed in Article 19; these reasonable restrictions are to preserve and protect the sovereignty and integrity of the state, security of the state, friendly relations with a foreign state, public order and morality. If anything covers any aspects of these, the government has the power to restrict people and put restrictions on the right to freedom of speech and expression. But, if the government misuses its power, people can approach the court and challenge the government action.”
This is precisely what happened. The matter was moved in the Supreme Court challenging the centre’s decision to block public access to the documentary. One petition was jointly filed by journalist N Ram, Advocate Prashant Bhushan and TMC MP Mahua Moitra and another was filed by Advocate ML Sharma. Hearing the plea, the apex court bench, comprising Justices Sanjiv Khanna and MM Sundresh, directed that the centre should produce the original records relating to the order banning the screening of film on the next date of hearing, April 2023.
Article 17(1) of the IT Act mandates: “The Authorised Officer shall maintain complete records of the proceedings of the Committee, including any complaints referred to the Committee, and shall also maintain records of recommendations made by the Committee and any directions issued by the Authorised Officer.”
Furthermore, the petitioners also contended that since as per government request all the pleas challenging IT rules have been clubbed for hearing at the Supreme Court, the petition has been filed at the apex court, and not in High Court.
Shailesh Gandhi, former central information commissioner, said: “The question is not of a documentary. The question is not of private information. This is a question of fundamental rights of the citizens of
the country.”
The documentary was banned invoking the IT Act. As per Article 16 (1) of the Act: “the Authorised Officer, in any case of emergency nature, shall examine the relevant content and consider whether it is within the grounds referred to in sub-section (1) of Section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit a specific recommendation in writing to the Secretary, Ministry of Information and Broadcasting.”
The petitioners have also raised the way in which the IT Act was invoked. Pawan Duggal, IT expert and advocate, said: “In the IT Act 2022, a number of parameters have been defined which can be interpreted in any direction. The government says that it is invoking emergency powers because the country’s integrity and security are at risk. Having such broad parameters, it’s difficult to define the security threat as stated by the government. The petition has asked for some checks and balances, because if in future government takes arbitrary decisions or arbitrary use of these emergency powers, there are chances of violating the bindings of not only people’s freedom of expression, but also their fundamental right of right to information. Thus, we have to wait for Supreme Court’s decision.”
The BBC has stood by its documentary. It had noted that it met the highest editorial standards. The BBC in its news report published in its website said that “it was committed to highlighting important issues from around the world.” It added that the Indian government was offered a right to reply, but it declined.
Meanwhile, as the ban stands to be heard at the Supreme Court, broader questions like application of IT rules and right to freedom of expression also demand an answer.
SC rejects plea to ban BBC in India
A petition by Hindu Sena chief Vishnu Gupta seeking a complete ban on BBC in India was shot down by the Supreme Court on February 10. The petition was filed in the background of BBC’s documentary on PM Modi and allegations links to the Gujarat riots in 2002.
Calling the plea “entirely misconceived”, the Court wanted to know how can a documentary affect the country and said the plea had no merit before dismissing it. The lawyer for the petitioner argued that BBC was “deliberately maligning India’s image”. The plea also wanted NIA to probe into the “conspiracy” behind the documentary.